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May 22 2009, 3:24 pm by Marc Ambinder

The Rubicon Of Indefinite Detention

Has the Obama administration really endorsed the reality of preventative detention -- an American gulag, indefinite imprisonment without trial for battlefield enemies? It depends on who you ask. Administration officials acknowledge that the question is tricky; even as they insist that the decisions they're making about Guantanamo Bay prisoners will only apply to Guantanamo Bay prisoners, they concede that those dispositions will set a precedent that will likely result in some sort of ... well, indefinite detention system for future detainees. That Rubicon has been crossed; there exist human beings in this world who could be indefinitely held without trial under the authority of the president of the United States.

When Obama met Wednesday with leading human rights activists, he was pressed about this very issue as regards to the precedents that his actions would set and what they would say about American justice. (Participants were armed with good questions and some of them, knowing Obama personally, knew that he always pays attention to the larger narrative his decisions will create.)

According to participants and to administration officials, the President acknowledged the gravity of the question but chose not to answer it directly. (That's probably because, with the swirl of court cases, he doesn't know just yet what Article II powers will be available to him.) Obama then asked those assembled to help his administration draft guidelines for military commissions -- lasting guidelines, guidelines that would outlive his administration.

He was blunt; the MCs are a fait accompli, so the civil libertarians can either help Congress and the White House figure out the best way to protect the rights of the accused within the framework of that decision, or they can remain on the outside, as agitators. That's not meant to be pejorative; whereas the White House does not give a scintilla of attention to its right-wing critics, it does read, and will read, everything Glenn Greenwald writes. Obama, according to an administration official, finds this outside pressure healthy and useful.

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Tracked on June 5, 2009 1:19 AM

Comments (14)

SocraticGadfly

Sure he listens to Glenn, sure.

Meanwhile, the real loser yesterday was neither Obama nor Uncle Fester, but the American public.

notavailable

LOL, if Obama listens to Glenn Greenwald, his actions surely do not convey it. In from one ear and out of the other, bypassing the brain.

Just four months ago Obama in his inaugration speech waxed eloquently:
As for our common defense, we reject as false the choice between our safety and our ideals.

Our founding fathers faced with perils that we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations.

Those ideals still light the world, and we will not give them up for expedience's sake.

If Obama is concerned about the bigger narrative he better stop giving ammunition to the Cheney claim that Obama is validating the decisions made by the Bush/Cheney administration.

Elmer_Stoup

The American public is the winner. Under the Geneva Conventions, prisoners-of-war can be held until the termination of hostilities. Surely, terrorists not abiding by the rules of war can be held just as long.

I'm sure that the Germans in the Afrika Korps who surrendered in June 1943 would have appreciated the ability to demand a free and immediate plane ride back to Frankfurt, courtesy of the U.S. Army Air Force. I can even imagine what those Germans would have said: "I was just a supply clerk in the maintenance battalion of the 4th Panzer Division. I didn't kill any Americans. I demand my rights under the U.S. Constitution!"

mjtimber

Good to know that he reads Glenn's excellent work. At the same time, sad to know that he reads Glenn's work. How could he give a flip about Glenn's points and come to these decisions? They make no sense from a "law and order" standpoint.

slag
That Rubicon has been crossed; there exist human beings in this world who could be indefinitely held without trial under the authority of the president of the United States.

Simply unacceptable.

mjtimber

Mr. Stoup,

NOT the same. Read Glenn Greenwald's column today that addresses this very subject - no reason to rehash here.

Elmer_Stoup

mjtimber,

Thanks for your comment; but, in my opinion, there are plenty of reasons to rehash. The salient point is that these terrorists are enemies of the U.S. in a war of indefinite duration, not of our choosing. Even President Obama seems to recognize that certain people, whom we don't have the evidence to convict, need to be kept locked up for our security.

fort lauderdale (Replying to: Elmer_Stoup)

Elmer,

You've got to be kidding. We don't have the evidence to convict them, because . . . why? Because maybe they aren't guilty? Or does one just know by looking at them?

Go ahead and cite history all you want. But I wonder how you might react if someone who was in a position to imprison people looked at you one day and decided you were guilty of something. Whether you were or you weren't, don't you think you would, at the very least, like an opportunity to state your case?

And would you hold it against me if I, without knowing anything about your situation, felt it was better for my "security" than you were thrown in prison for life even though no one proved a thing against you?

Just think about it. That's all I'm asking.

fort lauderdale (Replying to: fort lauderdale)

Actually, hold up, Elmer. I get the feeling you aren't entirely serious all of the sudden. "Indefinite duration, not of our choosing?" Things that make you go hmmmmm . . .

Elmer_Stoup (Replying to: fort lauderdale)

Appreciate the civil comment. As a retired Army Reserve officer and amateur historian, I believe it's clear that we capture enemy combatants in situations where it is impossible to get sufficient "proof" to convict these folks in a civilian court. I bring up 1943 North Africa because there was no way we were going to allow that tank mechanic in the 4th Panzer to go back to Germany where he could be reassigned to continue the war against us.

You have to realize when you're in the middle of a war, it's difficult to know how long it will last.

Well, this has to be my last post on this topic. Again, appreciate the civility.

SarahF

If the framework is wrong or the original assumption incorrect, then everything that follows is wrong.

William Dalton

The reason the government is facing the problem of indefinite detentions of foreign susptected terrorists is because it has taken them into custody in the first place. A legitimate war is one in which a foreign enemy theatens the security of the United States, we go to war with that enemy, defeat it and compel its government to sue for peace upon terms that will ensure our security. Reaching that agreement, we return those we have taken prisoners of war back into the custody of that government. The treatment of those prisoners is then its responsibility.

But when we send troops abroad, not to deal with a foreign government, but to intervene in and try to determine the outcome of struggles for governmental power in foreign countries, we either create governments that can take control of those countries and the prisoners we have captured, or we fail in our objective and have to live with the consequences. One of those consequences is having to release prisoners who are nationals of no country we trust to deal with them. Our Constitution justly, and rightly, denies our government the power to hold anyone without evidence sufficient to try and convict them of real crimes, not just opposition to and hatred of "our way of life".

The way to avoid facing this situation in the future is to withdraw our troops from situations, like Iraq, Afghanistan, and Pakistan, where it will recur. We have to stop fighting wars to remake other countries, and allow other countries to settle their own affairs while we concentrate upon defending our people and territory in a way that will both deter from and not give excuse for any other country, friend or foe, attacking us.

TW Andrews

It seems to me that if the case is going to be made that detention is equivalent to detaining a POW, there needs to be some definition of when this "War" will be over and these folks will be released or tried.

3d Movie

I think Obama is a good man.

Regards
3d Movies